Donald Ertz - Page 30

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          301.7122-1(c)(3)(iv), Examples (1) and (2), Proced. & Admin.                
          Regs.  The first example describes a taxpayer who is seriously              
          ill and unable to file income tax returns for several years.  The           
          second example describes a taxpayer who received erroneous advice           
          from the Commissioner as to the tax effect of the taxpayer’s                
          actions.  Neither example bears any resemblance to this case.               
          Unlike the exceptional circumstances exemplified in the                     
          regulations, petitioner’s situation is neither unique nor                   
          exceptional in that his situation mirrors those of numerous other           
          taxpayers who claimed tax shelter deductions in the 1980s and               
          1990s.  See Keller v. Commissioner, T.C. Memo. 2006-166; Barnes             
          v. Commissioner, T.C. Memo. 2006-150.                                       
               Of course, the examples in the regulations are not meant to            
          be exhaustive, and petitioner has a more sympathetic case than              
          the taxpayers in Fargo v. Commissioner, 447 F.3d at 714, for whom           
          the Court of Appeals for the Ninth Circuit noted that “no                   
          evidence was presented to suggest that Taxpayers were the subject           
          of fraud or deception”.  Such considerations, however, have not             
          kept this Court from finding investors in the Hoyt tax shelters             
          to be liable for penalties and interest, nor have they prevented            
          the Courts of Appeals for the Sixth and Tenth Circuits from                 
          affirming our decisions to that effect.  See Mortensen v.                   
          Commissioner, 440 F.3d 375 (6th Cir. 2006), affg. T.C. Memo.                







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